Adult guardianship is a legal process through the county Probate Court whereby a judge determines whether a person has legal capacity. If a person is deemed to have no legal capacity, then a guardianship is granted and the “ward” then loses most of his civil rights.
The guardianship process may be avoided if a person has executed valid powers of attorney, discusses further on our Disability Planning page. If a person does have valid powers of attorney, a guardianship may still be necessary if the power of attorney agent is abusing or neglecting her authority.
Generally, in this event a third person petitions for guardianship and presents evidence to the presiding judge as to why a guardianship is necessary and why the power of attorney agent is not the appropriate person to be appointed. Since there are two parties with conflicting interest, litigation ensues.
The judge has the responsibility of listening to all the evidence presented in court and then making a determination whether the person needs a guardian and who shall be appointed as guardian. A guardian of person is appointed to make personal and health care decisions for the ward.
A conservatorship is appointed to obtain control over the ward’s financial and property rights. The judge may appoint the same person for both roles or different people.